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Gillian Black, PUBLICITY RIGHTS AND IMAGE: EXPLOITATION AND LEGAL CONTROL Oxford: Hart Publishing (www.hartpub.com), 2011. xx + 223 pp. ISBN 9781849460545. £45.

Document Cited authorities 1 Cited in Related
Vincent
Date01 January 2012
AuthorPatrick O'Callaghan
DOI10.3366/elr.2012.0094
Published date01 January 2012
Pages135-137

Since the early 1960s we have become accustomed to what Radin terms a “market rhetoric” on the part of Law and Economics scholars (M J Radin, Contested Commodities (2001) 4). The provocative nature of such work often generates heated debates about the appropriateness of this rhetorical style. But “market rhetoric” has been a feature of the personality rights field since the emergence of intellectual property rights in the nineteenth century. Yet, in the UK, several important problems remain unresolved. How should legislators and courts respond to a culture in which public figures and celebrities routinely market their persona as a product? What are the justifications for a potential publicity right? And how should this right take shape in practice? These are some of the important questions addressed by Gillian Black in her recent book on publicity rights and image.

Black's book is a welcome addition to the literature in the field for she considers complex and difficult questions about privacy and publicity and brings to her task an obvious commitment to exacting analysis. Her method merges theory with “evidence of commercial practice” (5). This technique is most apparent in Part II of the book. Here, Black considers various justifications for a publicity right and reflects on how to address the “tension” caused by the “duality” of dignitarian and economic interests (91). Questions of this sort have had a long history. In Leviathan (pt 1, ch 10), Hobbes writes that the “value or worth of a man, is as of all other things, his price”. Kant's understanding of dignity/worth (Würde) is a rejection of this Hobbesian view. In his Grundlegung zur Metaphysik der Sitten (4:434-4: 435), he draws a distinction between external things that have a “price [and that] can be replaced by another thing as its equivalent” and an irreplaceable “inner worth [that] allows no equivalent”. This “inner worth” is an end in itself. Kant's distinction between external things and “inner worth” is highly relevant to the “duality” problem raised by Black for it forces us to ask a very basic question: how can we reconcile potential proprietary aspects of personality embracing universality, exclusivity and transferability, as Posner would have it, with human dignity and uniqueness? Black suggests that the “dual interests” are “not mutually exclusive”. Within a publicity right, these interests “are equally relevant and compatible” (96). To support this stance she draws on both theory and...

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